On June 24, 2013, the United States Supreme Court in University of Southwestern Medical Center v. Nassar held that causation for retaliation claims under Title VII must be proven by “but for” causation and not by the lower mixed-motive or substantial factor standard. In other words, to prevail on a Title VII retaliation claim, an employee must demonstrate that retaliation was the cause of an adverse employment action and not simply one of the employer’s motives.
Factual Background
Plaintiff was a physician of Middle Eastern descent who worked for the University of Texas (the “University”) and Parkland Memorial Hospital (the “Hospital”). An agreement between the University and the Hospital required the Hospital to offer vacant staff physicians to University faculty members. Plaintiff claimed that the Chief of Infectious Disease Medicine was biased against him because of his religion and ethnic heritage, and on multiple occasions met with the University’s Chair of Internal Medicine to complain about harassment including the Chief’s scrutiny of his billing practices and productivity as well as comments that “Middle Easterners are lazy.” Because of the alleged harassment, the physician attempted to work at the Hospital without serving on the University’s faculty. He resigned his teaching post stating in writing that he was leaving because of the Chief’s religious, racial and cultural bias against Arabs and Muslims. Upon reading the physician’s letter, the Chair said that the Chief has been “publically humiliated by “th[e] letter” and that it was “very important that she be publicly exonerated.” The Hospital subsequently offered the physician a job, but the Chair protested stating that the offer was inconsistent with the affiliation requirement that all staff members be members of the University’s faculty. The Hospital withdrew its offer.
The physician filed a Title VII suit in the Northern District of Texas alleging that he was constructively discharged from the University based on his race and religion and that the Chair’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about the Chief’s harassment. He prevailed in the trial court on both grounds. On appeal, the Court of Appeals for the Fifth Circuit vacated the discrimination charge finding a lack of evidence to support a constructive discharge claim. It, however, affirmed the physician’s retaliation claim finding that the Chief was motivated, at least in part, by the physician’s complaint against the Chair. In so ruling, the Fifth Circuit held that retaliation claims, like discrimination claims under Title VII, require only a showing that retaliation was a motivating factor for an adverse employment action and not the only — or “but for”— cause for the action. The United States Supreme Court granted certiorari.
The Statutory Construction of Title VII
After engaging in a lengthy discussion of the statutory construction of Title VII and its amendments, the Supreme Court overruled the Fifth Circuit finding that retaliation claims, unlike discrimination claims, require a higher standard of causation (“but for” causation instead of a “motivating factor”).
The majority decision, written by Justice Kennedy, explained that five of the seven protected categories set forth in Title VII are personal characteristics or what it calls “status based” discrimination and are set forth in Section 2000e-2. These include race, color, religion, sex and national origin. The other two protected categories — the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination — commonly referred to as “protected employee conduct” — are set forth in Section 2000e-3a. While Section 2000e-2a and Section 2003e-3a both prohibit an employer taking adverse employment action “because” of certain criteria, Section 2000e-2(m), which was added to Title VII by the Civil Rights Act of 1991, lessened the causation standard required for status-based claims.
Section 2000e-2(m) states, “An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (emphasis added). The Civil Rights Act further amended Title VII to provide that an employee would be entitled to declaratory relief, some forms of injunctive relief, attorney’s fees and costs based solely on proof that a protected characteristic was a motivating factor in the employment action. If, however, an employer could demonstrate that it would have taken the same action regardless of the protected category, the employer could escape an award of damages and an order requiring reinstatement. Because Section 2000e2(m) does not address protected employee conduct, the Supreme Court held that the motivating factor standard is inapplicable to retaliation claims.
Public Policy Reasons for Limiting Retaliation Claims
In addition to the textual basis for its decision, the Supreme Court emphasized that the proper interpretation and implementation of Section 2000e(3) and its causation standard has “central importance to the fair and responsible allocation of resources in the judicial and litigation system.” Noting that the number of protected employee conduct claims have nearly doubled in the past 15 years from just over 16,000 in 1997 to over 31,000 in 2012 and have “outstripped” those for every type of status-based discrimination except for race, the Supreme Court opined that lessening the causation status could contribute to the “filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.” The Supreme Court went as far as to provide a hypothetical of an employee who, knowing that he or she is going to be fired or given a lower pay grade for poor performance, or even just transferred to a different assignment or location, is tempted to make an unfounded charge of status based discrimination to set up a retaliation claim when the adverse action occurs.
The Dissent
The dissent, authored by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan, argued that in reaching its decision the majority broke from a long line of decisions which held that a ban on discrimination encompasses retaliation and that “retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it.” Justice Ginsburg explained that the Civil Rights Act of 1991 was intended to provide additional protections to employees and that there was “scant reason to think” that Congress meant to exclude retaliation claims from the “motivating factor” provision of Section 20003-2(m). She also cited the EEOC’s longstanding guidance that the motivating factor standard applies to retaliation claims.
Advice for Employers
While the decision is a victory for employers, employers who take adverse action against employees who engage in protected employee conduct run the risk that a jury will discredit any lawful reason the employer provides for the adverse action. Moreover, despite the fact that a jury will be given separate instructions on a discrimination and a retaliation claim brought in the same action, jurors may not appreciate the nuanced distinction in the causation standard and be inclined to conclude, as the dissent suggests, that retaliation and discrimination are one in the same and cannot be separated for liability purposes.
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Cooper-JennyThis article was originally published by Bingham McCutchen LLP.